Sun Sentinel Palm Beach Edition
Supreme Court considering cross
In separate issue, high court rules in Ala. dementia case
The new set of justices faces its first church-state case and sounds ready to keep a cross honoring soldiers.
WASHINGTON — The Supreme Court with new Justice Brett Kavanaugh faced its first church-state dispute Wednesday and sounded ready to keep in place a nearly century-old cross that honors soldiers who died in World War I.
The justices, both liberal and conservative, said the so-called Peace Cross should not be torn down or moved. The 40-foot cross sits at a busy intersection in suburban Maryland.
Justice Elena Kagan said the history of the era shows why the cross should be able to stand. She said the “rows and rows of white crosses” near the battlefields of World War I made the cross the “pre-eminent symbol” of sacrifice in America in the decade after the war.
But Kagan and most of the justices said they would be reluctant to uphold a city’s decision to erect a cross today as a dominant symbol on public property.
Deputy Solicitor General Jeffrey Wall, representing the Trump administration, said the Bladensburg, Md., cross should be allowed because it is a war memorial, but he said it would be “problematic” if a city today said it wanted to erect a “naked, unadorned” cross on public property. That would be harder to defend, he said.
However, the justices conceded they are still struggling with how to devise a legal rule that clarifies when public displays of religion go too far and violate the First Amendment’s ban on an “establishment of religion.”
While the Peace Cross was built with private funds in the 1920s to honor 49 dead local soldiers, it has been maintained on public land and with public funds since 1961.
Several residents sued along with the American Humanist Association, and they won a ruling from the 4th Circuit Court in Richmond, Va. In a 2-1 decision, the appeals court ruled that because the cross was the core symbol of Christianity, its prominent display on public property was an unconstitutional “endorsement” of religion.
In mid-October, just as Kavanaugh joined the court, the justices agreed to hear an appeal from the American Legion, which helped build the cross, and from the Maryland park commission that maintains it.
The principle of churchstate separation has waxed and waned in recent decades. Conservative groups are urging a broad ruling that would sweep aside past restrictions and allow towns and school districts to display religious symbols. In a separate line of cases, they seek to give conservative Christians a religious liberty right to refuse to serve same-sex couples or to refuse to provide contraceptives for female employees.
In another case Wednesday, the justices ruled an inmate suffering from dementia may not be executed if his disease is so severe that he is not able to rationally understand the reason for his punishment.
Chief Justice John Roberts joined the court’s four liberals in saying Alabama death row inmate Vernon Madison deserves another chance to prove that a series of strokes and worsening vascular dementia means that he can no longer remember his crime or why the state wants to execute him.
The court previously has ruled that the Eighth Amendment’s prohibition on cruel and unusual punishment means those who suffer from pervasive delusions associated with schizophrenia and psychosis may not be put to death.
Kagan, delivering the opinion for the majority in the 5-3 ruling, said the same logic applies to those who cannot understand the link between their crimes and punishment because of dementia.
The court had taken the case to decide a second issue: whether Madison cannot remember committing his crime meant that he could not be executed. The court ruled that, on its own, it did not.
Besides Roberts, she was joined in the opinion by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.
The court’s ruling does not automatically spare Madison from execution. It said the case has to go back to a lower court to determine the extent of Madison’s dementia; it said there was reason to believe the lower court had not performed that task.